Courts should not intervene where decisions on democracy are based on preferences and balancing acts
Dear Editor,
As a direct result of the 1999-2000 constitution reform process, the Parliament unanimously enacted sixteen or so acts to amend the 1980 Constitution. Among this set of legislation is the now-contested Act 17 of 2000, which amended Article 90 of our Constitution to introduce presidential term limits. Both the High Court and the Court of Appeal, in the case of Cedric Richardson v the Attorney General of Guyana and the Speaker of the National Assembly, ruled that Act 17 of 2000 is unconstitutional, but ruled so broadly and without providing a practicable legal test that the other amendments are now engulfed in legal uncertainty. Legislators, legal drafters, lawyers, law students, and the interested public have been given no useable legal standards for testing the constitutionality of both existing and any future constitutional amendments.
The courts have judged Act 17 of 2000 to be unconstitutional because, in Justice Chang’s words, (i) “any Act of Parliament which seeks to diminish such essential democratic values cannot be of legal effect without a referendum…”; and (ii) “on the other hand, an alteration of any of those provisions which seek to widen or promote the values or rights therein contained would not require a referendum, and a 2/3 majority vote of all the elected members would suffice…” In other words, a ‘democracy test’ to quantify democratic values and rights.
Where does the court’s ‘democracy test’ leave us? It means that judicial review can now confront the age-old tenets of democratic theory and practice, where much of what we call democratic stretches well beyond settled principles to also encompass preferences from among several good options. So, for example, the fact that we hold presidential elections every five years (and not every 4, 6 or 7 years, as in other countries) and that the voting age is 18 years (thereby denying the right to vote to those below 18) are our preferences, not hard-and-fast democratic rules or values. Likewise, our opting for presidential term limits is a choice.
Lest we be confused, the court’s ruling is saying: sure, but this choice must be made by the people in a referendum, not by their parliamentarians, as was the case. But to take this second step in its analysis, the court had to rule, as a first step, that Act 17 of 2000 fails the ‘democracy test’ (it diminishes essential democratic values, in the court’s words). What is missing in the court’s ruling (or may have escaped me) are the specific legal criteria we must apply in the first step to measure whether a constitutional amendment diminishes or expands democratic values. Therein lies the problem that puts the other recent constitutional amendments in legal free fall.
On another front, even if the court had provided a hard legal test to measure democracy, a problem would still remain in that the constitution has enshrined other sweeping national values and goals. Our constitution speaks of strengthening our unity, celebrating our cultural and racial diversity, embracing a spirit of reconciliation, and establishing inclusionary decision-making. Some of these goals would clash at times with democratic values however defined. For instance, while the use of quotas in the composition of the parliament in India and other countries helps to strengthen unity and inclusion, does it not restrict the democratic rights of Indians to freely vote for politicians regardless of their caste, even if it means some castes would be unrepresented in the parliament? Likewise, while depoliticizing our new constitutional commissions (such as the Public Procurement Commission) by making them independent promotes national unity, does it not diminish democracy by giving unelected commissioners power over key national affairs?
The point is even if it were justifiable (and it is surely not) for the court to intervene to determine what diminishes or expands democracy, it would still need to apply a balancing test to consider other competing national aspirations.
In fact, as is well known, the driving force behind the term limit amendment was to promote other constitutionally-enshrined goals such as political reconciliation. The rulings ignore such thinking.
All of these considerations plainly show that the courts should not intervene in these issues where decisions on democracy are based on preferences and balancing acts, but should instead properly leave them to the political/legislative process.
Yours faithfully,
Sherwood Lowe